The current Judicial Recovery and Bankruptcy Act was right to leave the punitive image of earlier legislation in the past. On the other hand, the new legal certificate contains rules that conflict with areas of Brazilian law, such as taxation and labor.
This is the minister’s discretion Marcelo Navarro Ribeiro Dantasof the Supreme Court of Justice, in an interview with the series “Grandes Temas, Grandes Nomes do Direito”, where the online magazine Counsel A conversation with some of the key figures in law on the most relevant topics of the day.
According to the minister, the law regulating bankruptcy and judicial recovery today has positive points with regard to the old previous diploma, especially with regard to the protection mechanisms for companies in crisis that were established in it. The problem, Dantas says, is that the new law — inspired by US bankruptcy law — somehow conflicts with other areas.
“For example, with our tax administrative structure, which is based on Iberian law and gives a lot of clarity and advantages to our public treasury or to pay creditors,” the minister explained. “Secondly, legal practitioners currently seek to operate casually in the context of bankruptcy, as tax and labor issues, for example, have a very strong impact on this type of operation.”
“The bankruptcy process is no longer what it used to be. Before the current reorganization law, it was a problem in commercial law, and today it is a general problem. Public and private law.
Another discussion within the scope of the law, according to the minister, is related to the criminal law and the specifics of its branches. In this sense, he notes that the practices described as an institutional crime are linked to economic criminal law, whose criminality is “widespread, based on types defined purely by law.”
“That is, they are not natural crimes, they are crimes defined in the law, and oftentimes, out of mere conduct, or regardless of the outcome, formal or open types,” Dantas continued.
Therefore, the criminal law has its role in the recovery law that works effectively.
This is how the minister, judges and specialists communicate in the face of “a mountain of difficulties and conflicts”. On the other hand, new opportunities are presented to newcomers: “It is a very beautiful field of law, full of questions, that opens up for new jurists to seek to build new and more compatible solutions in this moment of state and business law.”
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